Birmingham Grain Co.

National Labor Relations Board - Board Decisions

Mar 14, 1944

55 N.L.R.B. 487 (N.L.R.B. 1944)

In the Matter of FRANK L. TIIIEMONGE, DOING BUSINESS AS BIRMINGHAM
GRAIN COMPANY and UNITED WHOLESALE & WAREHOUSE EMPLOYEES
UNION LOCAL #261, C. I. 0.
Case No. 10-R-1094.-Decided March, 14, 1944
Air. Kenneth Peiriae, of Birmingham, Ala., for the Company.
Mr. Frank I. Parker, of Birmingham, Ala., for the CIO.
Mr. J. L. Busby, of Birmingham, Ala., for the A. F. of L.
Mr. Irving Rogosin, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
Upon a petition duly filed by United Wholesale & Warehouse Em-
ployees Union Local #261, C. I. 0., herein called the CIO, alleging
that a question affecting commerce had arisen concerning the repre-
sentation of employees of Frank L. Thielnonge, doing business as
Birmingham Grain Company,' Birmingham, Alabama, herein called
the Company, the National Labor Relations Board provided for an
appropriate hearing upon due notice before T. Lowry Whittaker,
Trial Examiner. Said hearing was held at Birmingham, Alabama, on
.January 25, 1944. At the commencement of the hearing, the Trial
Examiner granted a motion of International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of America, Local 612,
A. F. of L., herein called the A. F. of L., to intervene. The Company,
the CIO, and the A. F. of L. appeared and participated.2 All parties
were afforded full opportunity to be heard, to examine and cross-
examine witnesses, and to introduce evidence bearing on the issues.
During the course of the hearing, the Company and the A. F. of L.
1 The name of the Company was stated in the petition as Birmingham Grain Company. It
is stated here as corrected to conform to a motion to amend made during the course of tile
hearing
'Counsel for the Company appeared specially, without waiving the right to raise the
question of the Board's jurisdiction
55 N. L. It. B., No. 90.
487
488 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
moved to dismiss the petition, alleging that the Board was without
jurisdiction.' For reasons hereinafter stated, the motion is denied.
The Trial Examiner's rulings made at the hearing are free from
prejudicial error and are hereby affirmed. All parties were afforded
an opportunity to file briefs with the Board.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
I TIIE BUSINESS OF THE. COMPANY
Frank L. Tliienionge is an indi,viclu ;d, doing business as Birmnlgii,,,,,
Grain Company since May 1930 , and having; a principal office and place
of business in Birmingham , Alabama . The Company is engaged in
the general grain and feed business . Its purchases consist of hay,
corn, mixed feed , oats , hominy feed , and flour. It sells, at wholesale
and retail , flour , oats , corn , and hay, and processes , sells, and dis-
tributes , under the trade name of Tango, mixed cow feed, dairy feed,
laying mash, growing mash, pig and hog feed , horse and mule feed,
and chicken feed. During the last 12 -Inonth period , the Company
purchased raw materials of the value of $300 ,000, of which approxi-
mately 40 to 60 percent originated from points outside the State of
Alabama. During the same period, the value of sales was approxi-
mately $350,000, all of which were within the State of Alabama. The
Company employs a total of approximately 25 eluployees.4
The Company and the A. F. of L deny that the Board has jurisdic-
tion , on the ground that the Company has not been shown to be engaged
in interstate commerce . We have, heretofore , frequently held that
such facts as are above set forth are sufficient to confer jurisdiction upon
the Board, and we find that the operations of the Company affect com-
merce within the meaning of the National Labor Relations Act.5
II. THE ORGANIZATIONS INVOLVED
United Wholesale & Warehouse Employees Union Local #261,
^. I. O. is a labor organization affiliated with the Congress of Indus-
trial Organizations, adhrtitting to membership employees of the
Company.
B As an additional ground for its motion to dismiss , the A F of L alleged that there was
no e,idence that any of the employees of the Company ,ere members of the CIO In view
of the statement of the Field Examinei hereinafter refers ed to , this contention is manifestly
without foundation . See Section in, infra
i The tacts above recited aie substantially in accordance with a stipulation of the parties
Matter of Poalti ymea's Seia,ice Coipriation , 41 N L R P. 444 enf'd 118 F (2d) 204
(C. C A 3) , Matter of Rudolph and Charles Kudile, Co -partners , doing business under the
name of Kudile Bros., 28 N 1. R. B 116, enf d 130 F. (2d) 615 (C. C. A 3) See also,
Matter of Coca - Cola Bottling Works. 46 N L R B 180 , shatter of Durham Pepsi-Cola
Bottling Company, 40 N L R B 753 , N. L R. B N, Suburban Luinbei Co , 121 F (2d)
829 (C C . A 3) ccrt den . 314 U S 693
BIRMINGHAM GRAIN COMPANY 489
International Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America, A. F. of L., Local 612, is a labor organiza-
tion affiliated with the American Federation of Labor, admitting to
membership employees of the Company.
LII. THE QUESTION CONCERNING REPRESENTATION
Several days prior to December 18, 1943, the CIO telephoned the
Company advising that it represented a majority of its employees and
requested a conference for the purposes of collective bargaining.
Thereafter, by letter of December 18, it confirmed this request. The
Company, through its attorney, by letter dated December 31, 1943,
acknowledged receipt of this letter, advised the CIO of the existence
of an outstanding contract with the A. F. of L. and refused to recognize
the CIO until the actual bargaining representative has been determined.-
The Company and the A. F. of L. entered into a contract to run
for a period of 1 year from February 17, 1913, to and including Feb-
ruary 17, 1944, with a provision for automatic renewal from year to
year thereafter, unless written notice was given by either party 60
clays prior to the annual expiration date.
By letter dated December 15, 1943, the A. F. of L. notified the
Company of its desire to discuss an increase in wage rates and vaca-
tion provisions in accordance with the terms of the contract. Inas-
much as the CIO orally demanded recognition of the Company
several clays prior to the written request of December 18, 1943, which,
itself was presumably received by the Company 61 days prior to the
expiration of the February 17 contract, it is apparent that seasonable
notice of the claim of representation by the CIO was received by the
Company. Furthermore, the request by the A. F. of L. in its letter
of December 15, 1943, for a conference for the purpose of discussing
wages and vacations, would in any event have the effect of preventing
the automatic renewal clause from becoming operative.e We find,
therefore, that the contract is no bar to this proceeding.
A statement of a Board agent, introduced into evidence at the hear-
ing, indicates that the CIO represents a substantial number of em-
ployees in the unit hereinafter found appropriate.'
We find that a question affecting commerce has arisen concerning
the representation of employees of the Company, within the meaning
of Section 9 (c) and Section 2 (6) and (7) of the Act.
I Matter of Anaconda T11b e ^f Cable Company, 52 N L R B , 1028
1 The Field Examiner reported that the CIO submitted 19 authorization cards which bore
apparently genuine ouginal signatures The navies of 13 persons appearing on the cards
were listed on the Company's pay roll for the period ending December 22, 1943, which con-
tained the names of 19 employees in the appropriate unit Of the 13 cards, 1 was dated
November 1943, 11 were dated December 1943, and 1, January 1944.
490 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
IV. THE APPROPRIATE UNIT
It was stipulated by all parties that all production, maintenance.
shipping, cleaning, and delivery employees, including truck drivers
and helpers in the Birmingham plant of the Company, excluding
foremen and supervisors with authority to hire and discharge, and
office and clerical workers, constitute an appropriate unit. This
unit is substantially the same as that covered by the contract between
the Company and the A. F. of L. There are no shipping employees
within the conventional meaning of that term, the employees herein
involved consisting of truck drivers and helpers employed in the ware-
house who load and unload trucks, drive and make deliveries and
whose jobs are generally interchangeable.8 The one employee desig-
nated by the Company as a "shipping clerk" has supervision over these
employees, including authority to hire and discharge. He is ap-
parently the sole supervisory employee of the Company.
We find, substantially in accordance with the stipulation of the
parties, that all production and maintenance employees, excluding
foremen, office and clerical employees, and any supervisory employees
with authority to hire, promote, discharge, discipline, or otherwise
effect changes in the si atus of employees, or effectively recommend
such action, constitute a unit appropriate for the purposes of collective
bargaining within the meaning of Section 9 (b) of the Act.
V. THE DETERMINATION OF REPRESFL^TATiVES
We shall direct that the question concerning representation which
has arisen be resolved by means of an election by secret ballot among
the employees in the appropriate unit who were employed during the
pay-roll period immediately preceding the date of the Direction of
Election herein, subject to the limitations and additions set forth in
the Direction.
DIRECTION OF ELECTION
By virtue of and pursuant to the power vested in the National Labor
Relations Board by Section 9 (c) of the National Labor Relations
Act, and pursuant to Article III, Section 9, of National Labor Rela-
tions Board Rules and Regulations-Series 3, it is hereby
DIRECTED that, as part of the investigation to ascertain representa-
tives for the purpose of collective bargaining with Frank L. Thie-
monge, doing business as Birmingham Grain Company, Birmingham,
Alabama, an election by secret ballot shall be conducted as early as
8 The record does not disclose the presence of any employees specifically designated as
"cleaning and delivery employees" at the Company's plant, except as stated above.
BIRMINGHAM GRAIN COMPANY 491
possible, but not later than thirty (30) days from the date of this
Direction, under the direction and supervision of the Regional Direc-
tor for the Tenth Region, acting in this matter as agent for the Na-
tional Labor Relations Board, and subject to Article III, Sections
10 and 11, of said Rules and Regulations, among the employees in the
unit found appropriate in Section IV, above, who were employed
during the pay-roll period immediately preceding the date of this
Direction, including employees who did not work during said pay-roll
period because they were ill or on vacation or temporarily laid off, and
including employees in the armed forces of the United States who
present themselves in person at the polls, but excluding those employ-
ees who have since quit or been discharged for cause, and have not been
rehired or reinstated prior to the date of the election, to determine
whether they desire to be represented by United Wholesale & Ware-
house Employees Union Local #261, C. I. 0., or by International
Brotherhood of Teamsters, Chauffeurs , Warehousemen and Helpers
of America, Local 612, A. F. of L., for the purposes' of collective bar-
gaining, or by neither.